(Delivered by Sri P. Ramesh Babu, President)

          The complaint is filed by the complainant under section 12 of Consumer Protection Act, 1986 for giving direction to the opposite parties to allot Plot No.375    or any other plot in his favour; Rs.25,000/- towards damages and for costs of Rs.5,000/-.

2.       The material averments of the complaint filed by the complainant so far as the present controversy is concerned, in brief, are as follows:-           

          The complainant booked one Plot No.375 consists of 289 Square Yards in the venture of “Capital Town Ship” at Veeravalli-Gannavaram started by opposite parties on 14.5.2014 at Rs.5,000/- per Square Yard i.e., for Rs.14,45,000/- (Rs.289/- x  Rs.5,000/- = Rs.14,45,000/-) and paid Rs.1,00,000/-  on the same day by way of cheque that as per the demand of the 2^nd opposite party, the complainant paid 30% of the value of the plot by way of cheques on various dates as detailed in it so as to get the agreement executed in his favour that the opposite parties instead of executing the sale agreement, returned all the above cheques and refused to fulfill the contract and that the complainant filed the complaint for the above reliefs after issuance of legal notice.    

3.       Whereas it is the main case of the opposite parties as per their common counter filed in this case that as the complainant failed to pay 40% of plot amount within ten days of the first payment, his initial payment of Rs.1,00,000/- was returned that they have not received the remaining cheques alleged to have been sent by complainant that the complainant has no capacity to pay the agreed amount that this Forum has got no jurisdiction and the complainant ought to have approached the Civil Court if at all if there is any breach of contract and that the complainant is not a consumer as it is learnt by then that with the above plot, he was intending to make second sale for profit.

4.       The complainant filed his proof affidavit and marked Exs.A1 to A11 in support of his case before the Forum.  The 2^nd opposite party filed his proof affidavit before the Forum.  No documents have been marked on behalf of the opposite parties.

5.       The points for consideration are:        

(i)       Whether there is any deficiency in service on the part of the opposite parties ?

(ii)      Whether the complainant is entitled to have the reliefs as sought for ? and 

(iii)     To what relief ?

6.       Point No.1:

          The opposite parties got it mentioned at paragraph 6 of their common counter that:

Photostat copies of receipt, dated 14.5.2014 issued by opposite parties in proof of the receipt of Rs.1,00,000/- for Plot No.375 consists of 289 Square yards from the complainant; cheque, dated 14.5.2014 issued by complainant for the same amount and the statement of account relating to complainant in Bank of Baroda marked as Exs.A1, A2 and A7 respectively also would prove that the complainant paid Rs.1,00,000/- as advance for the Plot No.375 in the venture started by the opposite parties.  So as per the material averments made at paragraphs 6 and 8 of the common counter, about which the Forum had already extracted above and the documents marked under Exs.A1, A2 and A7, it can be held that the complainant entered into a contract with opposite parties to purchase Plot No.375 consists of 289 Square Yards in the venture “Capital Town Ship” at Veeravalli-Gannavaram.

7.       It is the specific case of the complainant that inpursuance of the demand made by the opposite parties, he issued three cheques under Exs.A4 to A6 representing 30% of the value of the contract including the above first payment of Rs.1,00,000/- and that the opposite parties returned all those cheques with a malafide intention as the land values have been increased enormously due to the proposed formation of State capital.  Whereas it is the contention of the opposite parties that Exs.A4 to A6 cheques have not been tendered to them.  But in cases like this, it is very easy for the opposite parties to canvass their case in the above manner and the Forum has to see whether there is any substance in it or not.  In view of the nature of the documents marked under Exs.A4 to A6, it cannot be contended that they are created by the complainant for the sake of this case.  Further the opposite parties have not issued any reply notice for the legal notice of the complainant denying his case relating to Exs.A4 to A6.  So under the above circumstances, it must be held that the complainant tendered 30% of the plot amount as demanded by the opposite parties.

8.       No doubt, it is the case of the opposite parties that the agreed amount out of the total amount to be paid within ten days of the first payment is at 40% and not at 30% and as the complainant failed to make such payment, his first payment of Rs.1,00,000/- also was returned under Ex.A3 cheque.  So when it is the case of complainant that the agreed part payment is 30%, the opposite parties contended that such amount is 40% and that too within ten days after the first payment.  But both parties have not placed any material to substantiate their above contentions.  In this connection, the attention of the Forum has straight away been diverted to Exs.A8 and A9.  Ex.A8 is the office copy of the legal notice, dated 19.7.2014 issued by complainant to opposite parties and Ex.A9 is two postal acknowledgements of opposite parties in proof of the receipt of the original of Ex.A8.  It is a fact that the opposite parties have not issued any reply notice for the original of Ex.A8 denying the case of the complainant and asserting their above contentions.  The opposite parties have not offered any explanation also about the circumstances under which, they could not issue any reply notice for the original of Ex.A8.  If it is the case of the opposite parties that they are illiterates and rustic persons and that due to such reason, they could not issue any reply notice for the original of Ex.A8, perhaps the position would have been otherwise.  But the opposite parties have not presented their case in such manner.  The opposite parties cannot present their case in the above manner, in view of the fact that they are doing real estate business in crores of rupees.  So the fact remains is that the opposite parties have not issued any reply notice for the legal notice of complainant disputing his case and asserting their case.  No doubt, non issuance of reply notice for the legal notice of the complainant is not fatal to the case of the opposite parties.  But in view of the facts and circumstances of the case as discussed above, the Forum can definitely rely upon Ex.A8 for coming to a correct conclusion.  When once the Forum accepts Exs.A8 and A9, it must be held that the complainant proved his case of tendering 30% of sale consideration as contended by him and the burden is shifted against the opposite parties to rebut the same.  But the opposite parties have not placed any material before this Forum to prove that part of sale consideration agreed to be paid is 40% and that too within ten days after the first payment.         

9.       It is also the contention of the opposite parties that the complainant had no capacity to pay sale consideration.  No doubt, as per Ex.A7 statement of account relating to complainant in Bank of Baroda, he was having balance amount of Rs.28,443/- as on 17.6.2014.  It is with respect to the above document, the opposite parties wanted to impress upon the Forum that the complainant had no capacity to pay the agreed amount.  But it is not the case of the complainant that he was having savings account in Bank of Baroda only during relevant period.  As per Exs.A4 to A6, the complainant was having account in Lakshmi Vilas Bank also during the relevant period.  In that view of the matter, contention of the opposite parties basing upon Ex.A7 only cannot be accepted.  Further as the Forum has already discussed above, the opposite parties have not issued any reply notice for the legal notice of complainant marked under Ex.A8 stating that he does not have financial capacity to pay the agreed amount during the relevant period.  Accordingly the above contention taken by the opposite parties is negatived.        

10.     It is the last contention of the opposite parties that the complainant is not a consumer as he booked the plot in question for doing real estate business and that this Forum has got no jurisdiction to entertain the complaint.  But the opposite parties have not placed any material to prove their above contention.  When such is the position, it must be held that the above contention taken by the opposite parties is only a contention taken for contention purpose.  In view of the facts and circumstances of the case as discussed above, it must be held that the complainant is a consumer and the opposite parties are service providers and that this Forum has got jurisdiction to entertain the present complaint.  

11.     The complainant has also marked photostat copies of one sheet containing the figure of Rs.12,000/- per Square Yard in “Capital Town Ship” and the pamphlet to the effect that the 1^st opposite party deceived the public as Ex.A10 and A11 respectively before the Forum.   But except marking Exs.A10 and A11 in the above manner, the complainant has not placed any material to prove the origin of the same and also the contents of the same.  So in the absence of any such proof, no importance can be attached to Exs.A10 and A11.  Though the case of the complainant with regard to Exs.A10 and A11 is not accepted, in view of the discussion made in the earlier paragraphs of the order, it must be held that there is deficiency of service on the part of the opposite parties.  Accordingly the point is answered. 

12.     Point No.2:

In view of the answering of the first point in the above manner, the complainant is entitled to have suitable reliefs.  Accordingly the point is answered.

13.     Point No.3:

In view of the answering of Points 1 and 2, the complaint has to be allowed in part.

          In the result, the complaint is allowed in part and the opposite parties 1 and 2 jointly and severally are directed to allot Plot No.375 or any other suitable plot as chosen by the complainant in the venture of “Capital Town Ship at Veeravalli–Gannavaram” in his favour, execute and register a sale deed with respect to the said plot in his name or in the name of his nominee at his expenses within one month after the complainant deposited the sale consideration of Rs.14,45,000/- (Rupees Fourteen Lakhs and Forty Five Thousands) only before the Forum and after receipt of  notice of such deposit from him in addition to paying costs of Rs.1,000/- (Rupees One Thousand) only to him.  The complainant is directed to deposit the sale consideration of Rs.14,45,000/- (Rupees Fourteen Lakhs and Forty Five Thousands) only before the Forum within one month after receipt of the copy of this order and shall inform such depositing of amount in writing to the opposite parties.

          Typed by N. Ramesh Babu, Junior Stenographer, to my dictation, corrected by me and pronounced by us in the open Forum, this the 19^th day of February, 2015.                                                   

                                                                                        Sd/-                                                                                                                                                                                                              President

                                                                   Sd/-                                 Sd/-      

                Member                           Member

District Consumer Forum-I,

                     Krishna, Machilipatnam.

Appendix of evidence

Witnesses examined

For the complainant:                           For the opposite parties:

P.W.1: Kuchipudi Vasudeva Rao.                   D.W.1:Machineni Koteswara Rao,  

(by chief affidavit).                                                           S/o. Venkata Ratnam,

R/o.59A-4-1/4, Vidyuth Colony,

Near Sai Baba Temple Street,

Besides DNR Brothers, Vijayawada – 8.

(by chief affidavit)

(2^nd opposite party).

Documents marked

On behalf of the complainant:

On behalf of the opposite parties:

               -Nil-

                                                                                       Sd/-         

                                                                                 President